He Who Frames the Issue…

As I often tell my students, the most important thing I learned in law school was that “he who frames the issue wins the debate.” In other words, whoever is successful in defining what’s at stake generally prevails.

You can see that truism pretty vividly in debates over culture war issues like abortion and LGBTQ rights: if  abortion is the right to kill babies, the anti-choice folks win. If the issue is whether government gets to decide what a woman does with her own body,  choice wins.  If gay people are demanding “special rights,” the homophobes win; if they are  petitioning for equal rights, gays win.

Framing also plays an important role in the struggle to defend what some Americans call “religious liberty” and others call “privileging Christianity” (because let’s face it, no one is  arguing that Jews or Muslims should be able to ignore the civil rights of other Americans).

As readers of this blog know, I’m a pretty staunch defender of separation of church and state. But I’m also aware that those of us who look askance at the persistent efforts of self-proclaimed “devout Christians” to breach that wall of separation sometimes see theocratic threats in situations requiring a more nuanced response.

Case in point: Above the Law has posted an article about a case that will confront our newest Supreme Court Judge.

The state of Missouri has a program that reimburses non-profit organizations that resurface playgrounds with rubber surfaces made from used tires. The program is paid for by a state sales surcharge on new tire purchases. Missouri gets fewer tires in its landfills, the children of Missouri get a safe surface to play on, everybody wins.

I am definitely not a “cultural conservative,” but I don’t think this is a fair framing of the issue.

In my reading, the religion clauses of the First Amendment require government neutrality in matters of belief; that is, government may neither benefit nor burden the exercise of religion.

The Missouri case–at least, as described in this article–reminds me of an older case from Ohio, the name of which I’ve long since forgotten. As I recall, the state required that all third-grade children be vaccinated, and sent public health folks into the public schools to administer the shots. The question before the court was whether they could also provide the inoculations in parochial school classrooms. The court said yes: using third-grade classrooms where children were already gathered was for the convenience of the state, and giving children vaccines pursuant to a state requirement hardly constituted support of religion.

Missouri could not constitutionally fund classrooms or teachers or books at a religious school. But it is by no means clear how a voluntary program designed to solve a problem for the state (disposing of used tires) while enhancing the safety of children’s playgrounds (by providing a softer surface) would amount to support for religion, or for a religious institution.

Medicaid dollars routinely cover the costs of elderly patients in religiously-affiliated nursing homes; we recognize that the public dollars are buying medical and custodial care, not supporting religion.

The Missouri issue is complicated by the fact that there evidently isn’t enough money to fund every school that wants to participate; the state should be able to prioritize its own school systems. There are other factors to be considered that didn’t make it into the article. (For example, it appears that Missouri’s “rule” against funding religious institutions is a so-called “Blaine Amendment” in the state’s constitution. That changes the calculus somewhat.) There were obviously factors that persuaded the lower courts to rule for the state.

That said, those of us on the front lines of Establishment Clause defense need to acknowledge that not all payments to a religious organization are support for religion.

Determining what constitutes neutrality for First Amendment purposes depends upon how we frame the issue–and we need to approach that framing in good faith. (No pun intended….)

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Studies Say…

I love this quotation( attributed to one Andrew Lang, who was born in 1844): “He uses statistics as a drunken man uses lamp-posts… for support rather than illumination.”

Actually, we all do that from time to time, and political psychologists tell us it is the mark of “confirmation bias”–the very human habit of cherry-picking available information in order to select that which confirms our preferred worldviews.

Because that is such a common behavior, and because we can easily find ourselves citing to “authorities” that are less than authoritative (and sometimes totally bogus), I’m going to bore you today by sharing information from a very useful tutorial on assessing the credibility of “studies,” as in “studies confirm that..” or “recent studies tell us that…”

Academics who have conducted peer reviews of journal submissions are well aware that many studies are fatally flawed, and should not be used as evidence for an argument or as confirmation of a theory. (If I were doing research on voter attitudes, and drew my sample–the population that I surveyed–from readers of this blog, my results would be worthless. While that might be an extreme case, many efforts at research fail because the methodology is inappropriate, the sample size is too small, the questions are posed in a confusing manner, etc.)

The tutorial suggests that journalists intending to cite to a study ask several pertinent questions before making a decision whether to rely upon the research:

The first question is whether the study has been peer-reviewed; in other words, has a group of scholars familiar with the field approved the methodology? This is not foolproof–professors can be wrong–but peer review is blind (the reviewers don’t know who conducted the study, and the authors don’t know who is reviewing it), and tends to be a good measure of reliability. If the study has been published by a well-regarded academic journal, it’s safe to assume that its conclusions are well-founded.

Other important inquiries included looking to see who funded the research in question.

 It’s important to know who sponsored the research and what role, if any, a sponsor played in the design of the study and its implementation or in decisions about how findings would be presented to the public. Authors of studies published in academic journals are required to disclose funding sources. Studies funded by organizations such as the National Science Foundation tend to be trustworthy because the funding process itself is subject to an exhaustive peer-review process.

The source of funding is especially relevant to the possibility that the authors have a conflict of interest. (Remember those “studies” exonerating tobacco from causing cancer? Surprise! They were paid for by the tobacco companies.)

Other important elements in the evaluation may include the age of the study, since, as the post noted,  “In certain fields — for example, chemistry or public opinion — a study that is several years old may no longer be reliable.”

Sample size and the method used to select survey respondents are obviously important, and statistical conclusions should be presented in a way that allows readers to review their calculations. It’s also worth looking closely to see whether the study’s conclusions are actually supported by the reported data. As the post notes,

Good researchers are very cautious in describing their conclusions – because they want to convey exactly what they learned. Sometimes, however, researchers might exaggerate or minimize their findings or there will be a discrepancy between what an author claims to have found and what the data suggests.

In an information environment increasingly characterized by misleading claims, spin and outright propaganda, the ability to distinguish trustworthy research findings from those that are intellectually suspect or dishonest is fast becoming an essential skill.

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How We Got Here….

A recent article from a publication called Fusion (with which I am unfamiliar) has been making the rounds on social media; I think the reason for its popularity is that it offers a perspective that strikes many of us–especially former Republicans– as persuasive.

If you want to understand intra-GOP warfare, the decision-making process of our president, the implosion of the Republican healthcare plan, and the rest of the politics of the Trump era, you don’t need to know about Russian espionage tactics, the state of the white working class, or even the beliefs of the “alt-right.” You pretty much just need to be in semi-regular contact with a white, reasonably comfortable, male retiree. We are now ruled by men who think and act very much like that ordinary man you might know, and if you want to know why they believe so many strange and terrible things, you can basically blame the fact that a large and lucrative industry is dedicated to lying to them.

The basic premise of the article is that, over the past decades, we have seen the emergence of a parallel media dedicated to lying to a particular demographic. Little by little, that “project” has created an alternate reality, and Americans find ourselves at the mercy of those who reside in that reality.

 The inmates are running the asylum, if there is a kind of asylum that takes in many mostly sane people and then gradually, over many years, drives one subset of its inmates insane, and also this asylum has the largest military in the world.

These quotations from the article confirm what most of us know; where the author makes a point that hadn’t occurred to me, at least, was the intra-party nature of this media strategy. The talking points delivered via talk radio, Fox News and rightwing blogs were, in this telling, different from the “more grounded and reality-based” media consumed by conservative “elites.” The “rubes”

 were fed apocalyptic paranoia about threats to their liberty, racial hysteria about the generalized menace posed by various groups of brown people, and hysterical lies about the criminal misdeeds of various Democratic politicians. The people in charge, meanwhile, read The Wall Street Journal and The Weekly Standard, and they tended to have a better grasp of political reality, as when those sources deceived their readers, it was mostly unintentionally, with comforting fantasies about the efficacy of conservative policies.

The consumers of the conspiracy theories–those the author calls the “rubes”–became the ground troops that helped the GOP win elections. But the article’s second–and more important–insight is that sponsorship of this worldview is no longer simply political. 

But if this was a reasonably useful arrangement for Republicans, who won a couple close elections with the help of their army of riled-up kooks, it was a fantastic deal for the real engine of the right-wing propaganda machine: companies selling newly patented drugs designed to treat the various conditions of old age, authors of dubious investing newsletters, sellers of survival seeds, hawkers of poorly written conservative books, and a whole array of similar con artists and ethically compromised corporations and financial institutions. The original strategy behind demonizing the “mainstream media” may have purely political, to steer voters away from outlets that tended to present information damaging to the conservative cause, but the creation of the conservative media was also a revenue opportunity for shameless grifters…

Conservative media became a goldmine for those willing to con trusting retirees, who have, as the article puts it, “a bit of disposable income, and a natural inclination to hate modernity and change—an inclination that could be heightened, radicalized, and exploited.” It was especially easy to prey on those inclinations during the term of a black President.

From there, it’s been all downhill.

Republicans realized they’d radicalized their base to a point where nothing they did in power could satisfy their most fervent constituents. Then—in a much more consequential development—a large portion of the Republican Congressional caucus became people who themselves consume garbage conservative media, and nothing else.

There is much more, especially about Trump and “Trumpians,” and the entire article is well worth reading and pondering.

The only thing missing from the spot-on analysis is the reason for the election of that “large portion” of GOP representatives who are delusional: gerrymandering.( If you don’t believe me, click through to read how it works….)

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The Worst-Case Scenario

Okay, thanks to some despicable behavior by the self-styled “moralists,” and millions of Koch brother dollars, Neil Gorsuch is now the newest Supreme Court Justice. So–aside from occupying Merrick Garland’s seat and a worrisome tendency to favor the arguments of corporate and “religious” litigants– what is the worst thing that can happen?

He manages to get Roe v. Wade overturned.

What would happen then?

Several red states would immediately pass laws making abortion illegal, something the Constitution currently prevents. Other states, however, would leave the decision where it belongs– with the woman, her family and her doctor. Women living in states prohibiting abortion– those who could afford it– would travel to states where it remained legal, and would have their abortions there. Others would go back to the remedies available in the “good old days”–coat hangers and dangerous “potions”– and many of them would die or become sterile.

Hopefully, there would be groups formed to raise money to cover the costs of poor women’s travel to states where abortion remained legal. We might expect the war on Planned Parenthood to abate somewhat–or at least devolve to the states– since the national anti-choice movement wouldn’t have Roe to kick around any more.

The political tsunami, however, would be the most interesting consequence of such a decision.

Survey research confirms that substantial majorities of Americans do not want to see Roe overturned. They may or may not support a woman’s choice to terminate her pregnancy, but they are appropriately leery of allowing government to dictate that decision. It is only a rabid anti-choice constituency that has maintained the political potency of reproductive choice as an issue. (I have a sneaking suspicion that most of these folks believe overturning Roe would end abortion in the U.S. It wouldn’t–it would simply leave the issue up to the states.)

Research suggests that anti-choice citizens are far more likely to be single-issue voters than pro-choice Americans. But that could change once a right that has been taken for granted is revoked. Pro-choice voters–especially women, who are already more likely to vote Democratic– would be more than irate; they would blame the GOP for the loss of reproductive liberty, and would be very likely to vote in even greater numbers against a party that so vividly demonstrated its contempt for women’s right to self-determination.

Anyone who participated in the Women’s March on Washington–in the nation’s capital, or in any of the multitude of other venues–and looked out over the sea of “pussy hats,” saw the signs being carried and heard the passionate speeches being made–understands the extent of the fury that would be unleashed by a Supreme Court  retreat from Roe v. Wade. Anti-choice activists have been a (generally marginal albeit important) asset to theocratic Republican candidates, but the pro-choice legions that would erupt after such a Court decision would create political blowback of massive proportions.

The GOP has used the issue of abortion to turn out a relatively small but very intense constituency in election after election.

If Roe is gone, the national GOP will no longer be able to rely on the issue of abortion to generate turnout, or to obscure or outweigh the party’s retrograde positions on other issues. If decisions about the legality of abortion devolve to the state level, the passions will also devolve. Some states will respect women’s right to autonomy, some will not. But in the absence of Roe v. Wade, abortion would lose its potency as a national right-wing wedge issue.

And Democrats would solidify their position as the party protecting and promoting women’s rights.

Republicans should be careful what they wish for.

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A Very Good Call

According to a recent article in the Indianapolis Star, part of Mayor Hogsett’s plans for a new criminal justice center includes terminating the city’s contract with a private prison company.

The mayor’s criminal justice reform task force has recommended that the Marion County Sheriff’s Department take over all operations for the proposed jail at the site of the former Citizens Energy coke plant, 2950 Prospect St. That means the county would end a decades-long contract with CoreCivic, formerly called Corrections Corp. of America.

There is a lot to applaud in the Mayor’s plan–especially the extent to which it recognizes the degree to which the criminal justice system has operated as a very unfortunate substitute for a functional mental health system. But the termination of the city’s contract with CoreCivic is particularly welcome. As the Mayor noted, the move will actually save the city money, but those savings are simply “icing on the cake.”

Beyond savings, the Hogsett administration wants to move away from a private operation model that has drawn fire from criminal justice reform advocates.

“First and foremost, that’s the job of our elected sheriff — to be responsible for the care and security of inmates,” said Andy Mallon, corporation counsel for the city. “That promotes accountability with public officials and transparency, whereas when you have a privately run jail, all of that gets transferred by a contract to a private, profit-driven company. We don’t think at this point we should be providing profits for jailing (inmates).”

The bottom line is–or should be–that there are some functions that government should rarely or never contract out, and incarceration is one of them. Giving private, profit-seeking enterprises authority to exercise the coercive power of the state is an invitation to abuse, and research has consistently found such abuse in the private prison industry. When the focus is on the fiscal bottom line, rather than public safety or offender rehabilitation, it isn’t surprising that such institutions save money by skimping on inmate’s meals or medical care, or that they are more abusive, violent, and dangerous than their government-run counterparts.

More insidious, however, is the effect of profit-making prisons on public policy. The companies that operate these prisons donate large sums to political figures, and spend significantly on lobbyists, and they aren’t just trying to curry favor with agencies that may award contracts. They are trying to influence criminal justice policy, arguing for laws that impose harsher and longer punishments and against efforts to decriminalize behaviors like marijuana use.

Criminal justice policies should be based upon their considered effects on public safety–not upon the profitability of politically-connected companies.

Mayor Hogsett has made a very good call.

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